Jeff Masten
ANATOMY OF A PROFESSIONAL
LIABILITY CASE
Jeff Masten MA MS JD DABR
Chief Medical Physicist
Aspirus Regional Cancer Center
Wausau, WI 54401
How We Will Proceed
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Civil Procedure Issues
Substantive Law Issues
Examples From Case Law
Law and Litigation Trends Impacting
Radiation Oncology
Civil Procedure Issues
• The pleadings (Summons & Complaint, Answer,
Cross Claims, Counter Claims and Third Party
Claims) get served. Then what?
• Discovery
• Motion Practice
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Jeff Masten
Discovery: Definitions
• Interrogatories
– Written questions to a party which must be
answered in writing and under oath.
Generally prepared with the assistance of a
lawyer
• Requests For Admissions
– Written demand to admit or deny some fact
which is relevant to a claim or defense in the
action.
Discovery: Definitions (Cont.)
• Depositions
– Questions answered under oath and recorded
by a stenographer.
– In the case of expert witnesses, frequently
videotaped
– In the case of expert witnesses, frequently
used in court in place of live testimony
Discovery: Why is it important?
• Discovery is where you find out about the
other side’s case
• Discovery is how you decide your strategy
at trial, and whether to settle
• Discovery is where your case can fall
apart
• Discovery forms the basis for your
motion(s) to dismiss
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Discovery: Important Issues
• Expert Opinions and the Work Product
Rule
• Privileges and Patient Confidentiality
• Trade Secrets and other Intellectual
Property laws
If I change my testimony in court after a deposition
can that act by itself affect the trial outcome?
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1. Yes
2. No
3. Only if my counsel doesn’t notify the
judge.
4. Only if my counsel doesn’t notify the
other side.
5. Only if my counsel doesn’t notify both th
judge and opposing counsel.
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Answer: (2) No, it will affect the trial (if
anyone pays attention to your testimony).
Federal Rule of Evidence 801.
The opposing lawyer can, and most likely
will, challenge your truthfulness for giving
two different answers to the same question.
Discovery testimony is as important as the
trial itself.
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Civil Procedure: An Example
Alyce Murphy and Bill Murphy, Plaintiffs v.
Dr. Frederick Wood, III; Dr. S. J. Kassis,
and Joe Dokes I Through V., the Cassia
Memorial Tumor Board, John Does I
Through XXX, the Cassia Memorial
Hospital and Medical Center,
Intermountain Health Care Services, Inc.,
and ABC Corporation, Defendants
Example (Cont.)
• Mrs. Murphy was examined and found to
have cervical cancer.
• Subsequently her physician, Dr. Wood,
participated in a meeting of the Cassia
Memorial Tumor Board, and presented the
case.
• Dr. Wood later performed a hysterectomy.
FOR MORE INFO...
Murphy v. Wood, 105 Idaho 180, 667 P.2d 859 (1983)
Example (Cont.)
• Mrs. Murphy complained she suffered
deterioration of both memory and speech.
• She alleged her prior condition made her a
poor candidate for surgery; that radiation
therapy would have been a better choice.
• She also alleged that the standard of care
required obtaining a second opinion.
FOR MORE INFO...
Murphy v. Wood, 105 Idaho 180, 667 P.2d 859 (1983)
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Example (Cont.)
• The doctor’s defense?
• I did get a “second opinion.” The Tumor
Board considered the case and agreed that
surgery was appropriate.
• He claimed that the local “standard of care”
was to seek recommendations from the
Board as a substitute for specialists.
FOR MORE INFO...
Murphy v. Wood, 105 Idaho 180, 667 P.2d 859 (1983)
Example (Cont.)
• The result?
• On a motion, the Plaintiffs (and the Tumor
Board) blocked access to any evidence
concerning the tumor board meeting.
• This effectively denied the doctors any
testimony that a “second opinion” was
obtained.
FOR MORE INFO...
Murphy v. Wood, 105 Idaho 180, 667 P.2d 859 (1983)
Example (Cont.)
• How did that happen?
• Idaho has a medical privilege statute that
forbids disclosure of records of in-hospital
staff committees engaged in research,
discipline and medical study.
• Unless the Tumor Board, or the Plaintiffs,
open the door, the testimony is forbidden.
FOR MORE INFO...
Murphy v. Wood, 105 Idaho 180, 667 P.2d 859 (1983)
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Moral Of The Story:
• DON’T ASSUME that the testimony or
evidence YOU need to defend yourself will be
automatically available.
• A substantial part of trial practice is devoted
to KEEPING EVIDENCE OUT.
– This is doubly true when the question concerns
scientific evidence on causation.
Motion Practice
• Motion practice determines what can be
said at trial.
• Motion practice determines whether the
case goes to trial.
• Motion practice determines whether you
hang on to what you won at trial.
• Remember Mrs. Murphy’s doctor?
Motion Practice
• With telemed, cyber practices and
hospital systems that extend over
multiple jurisdictions you may want to
keep Mrs. Murphy’s doctor in mind.
• Another issue may be foreign
jurisdictions – think about jurisdiction
and services like NightHawk for a
minute.
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Lex Locus Delictus
• The problem encountered in multijurisdictional cases is what law to apply.
• This area is called either conflicts or
choice of law and forms a semester
long course in law school.
• Traditional form is “lex locus delictus” –
the place of the wrong
Lex Locus Delictus
• This can determine the statute of
limitations that applies
• This can determine what negligence
standard applies
• This can determine what damages may
be available
• In other words it can determine whether
a case exists at all
Lex Locus Delictus
• You must always think through the legal
implications to your practice of crossing
local, state and federal jurisdictional
boundaries.
FOR MORE INFO...
Heidemann v. Rohl, 192 NW2d 164 (SD 1972)
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A Sampler Of Available Motions:
• Pretrial
– Summary Judgment
– In Limine
• During Trial
– Directed Verdict
• Post Trial
– Judgment NOV
Summary Judgment
Elements:
– No genuine issue of material fact
– Moving party entitled to judgment as a matter of
law
– Any inferences drawn AGAINST the moving party
Caveat...
Motions To Dismiss, Directed Verdicts and NOV have features in common
with SJ, but won’t be discussed here because of time constraints.
Summary Judgment
Uses:
– Narrow the case by knocking out multiple
counts in the complaint
– Narrow the case by eliminating parties
– Narrow the case by eliminating multiple items
of damages
– Kill the entire case
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Anatomy Of A Malpractice Claim
 Causation in fact
 Duty
 Breach of that duty
 Proximate Cause
 Damages
– Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99
Anatomy Of A Malpractice Claim
The central idea in negligence litigation is
that one has a duty to use something
resembling “reasonable care” in their
activities.
Here’s the classic statement of the issue
Anatomy Of A Malpractice Claim
“those who go personally or bring
property where they know that they or it
may come into collision with the persons
or property of others have by law a duty
cast upon them to use reasonable care
and skill to avoid such a collision.”
Fletcher v. Rylands (1866) LR1 Ex 265
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Causation
• Means just what it says -- did the
Defendant’s act, or omission, cause an
injury?
• Causation may be rather obvious
– Example: Therac-25 accidents
• Causation frequently requires expert
testimony
– Example: General Electric Co. v. Joiner
Admissibility of Scientific Evidence
• Joiner was a PCB exposure case.
• Expert testimony failed to show a link
between exposure to PCBs and small-cell
lung cancer and did not rise above
“subjective belief or unsupported
speculation.”
• “Gatekeeper” role of the judge discussed.
FOR MORE INFO...
General Electric Co. v. Joiner, et ux., __ U.S. ___ (No. 96188, 12/15/1997)
Admissibility of Scientific Evidence
(Cont.)
• The old rule of admissibility (Frye v. United
States) required the proposed scientific
evidence meet a standard of
– general consensus in the relevant scientific
community
FOR MORE INFO...
General Electric Co. v. Joiner, et ux., __ U.S. ___ (No. 96188, 12/15/1997)
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Admissibility of Scientific Evidence
(Cont.)
• The present day standard is Daubert v.
Merrell Dow Pharmaceuticals
– The focus must be solely on principles and
methodology, not on the conclusions that they
generate.
– The trial judge must function as a “gatekeeper”.
FOR MORE INFO...
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993)
Scientific Evidence: An Example
• Claimant was given radiation therapy in
doses which were an order of magnitude
larger than ordinarily prescribed.
• The physician defended his action on the
basis of one paper which he had heard
discussed at a conference.
• The Court awarded substantial damages.
FOR MORE INFO...
Ahern v. Veteran’s Administration, 537 F.2d 1098 (CA10
1976)
Scientific Evidence: An Example
• That was 1976. It does not appear that there
was an attempt to block admission of that
testimony.
• Today, the Defendant might not be permitted
to testify at all! (And keep in mind, it’s his
own trial)
FOR MORE INFO...
Ahern v. Veteran’s Administration, 537 F.2d 1098 (CA10
1976)
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Which statement about scientific evidence is true?
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1. The court will determine its admissibility and
the weight to be accorded to it.
2. The jury will determine the admissibility and
the weight to be accorded to it.
3. The court will determine its admissibility and
the jury will determine its weight.
4. The court will determine its weight and the ju
its admissibility.
5. Scientific evidence is admissible under all
circumstances.
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Question 2
Answer: (C)
General Electric Co. v. Joiner, et ux., 522 U.S. 136 (No. 96‐188, 12/15/1997)
You’re going to testify as an expert witness. What
rule governs the admissibility of your testimony?
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1.
2.
3.
4.
5.
Frye
Daubert
Brown v. Comerford
Both Frye and Brown apply.
Both Daubert and Brown apply.
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Question 3
Answer: (2) Daubert
If you’re going to be an expert, you absolutely need to know what that rule requires!
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, et ux., 522 U.S. 136 (No. 96‐188, 12/15/1997)
Moral:
• Novel procedures, and departures from
default, or standard, settings carry an
obvious claims risk.
• Is there support for the approach in the
scientific literature, or at least other
qualified witnesses to back YOU!?
Duty
• There are many sources of “duty” which
give rise to “negligence.”
• In general, any action which carries a risk
of injury, gives rise to a duty to use care in
a commensurate degree.
• Low risk of injury - ordinary care
• High risk of injury - great care
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“Other” Approaches To Duty
• Warranty Theories
– Express Warranty
– Implied Warranties
• Fitness For A Particular Purpose
• Merchantability
• Strict Liability (No Fault)
• Ultrahazardous Activity
“Other” Approaches To Duty
• To date, the courts uniformly HAVE NOT
permitted these theories.
• Warranty/Strict Liability apply to the “sale”
of “goods” by a merchant; they do not
apply to “services.”
• Radiation therapy is sufficiently beneficial
to avoid ultrahazardous classification.
(Brown v. Comerford)
Breach of Duty
Malpractice cases fall into two general
classifications:
– Informed Consent
– Standard of Care
• We will skip over Informed Consent issues
for this talk.
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Standard of Care
General Rule
• The reasonableness of a professional
defendant’s conduct is determined in
accordance with the standards of care
exercised or expected by others in the
same profession.
Standard of Care (Cont.)
• Proof of standard of care requires expert
testimony
• It is the Plaintiff’s burden to show a
departure from the standard of care by a
preponderance of the evidence
• Reasonable reliance on a defective
product does not excuse a professional
from using due care
Standard of Care (Cont.)
• Res Ipsa Loquitor
• “The thing speaks for itself”
• Used as a substitute for testimony for
proof of the standard of care element, and
its breach
• Usually not permitted in malpractice
cases.
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Example: Standard of Care
• Patient sued a radiologist and the hospital for
malpractice after statute of limitations had
run.
• Hospital cross-claimed against the radiologist
for indemnity.
• Judgment for patient against both, and for the
hospital against the radiologist.
FOR MORE INFO...
Ragan v. Steen and McKeesport Hospital, 229 Pa. Super.
515, 331 A.2d 724 (1974)
Example: Standard of Care
• Patient referred to radiologist employed by
the hospital for treatment of plantar warts on
right foot.
• After two treatments patient returned to
school.
• 2 years later foot tissue began to decompose.
FOR MORE INFO...
Ragan v. Steen and McKeesport Hospital, 229 Pa. Super.
515, 331 A.2d 724 (1974)
Example: Standard of Care
• 3 years after treatment surgery was required,
and patient filed suit.
• Pennsylvania had a 2 year statute of
limitations on malpractice.
• Patient avoided it under the “Discovery
Rule.” Runs from the time he knew or should
reasonably have known.
FOR MORE INFO...
Ragan v. Steen and McKeesport Hospital, 229 Pa. Super.
515, 331 A.2d 724 (1974)
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Example: Standard of Care
• Patient attempted to argue that the injury was
so unusual that it could not have occurred
without the negligence of the treating
physician.
• Court: A BAD RESULT IS NOT EVIDENCE
OF NEGLIGENCE IN A MALPRACTICE
CASE.
FOR MORE INFO...
Ragan v. Steen and McKeesport Hospital, 229 Pa. Super.
515, 331 A.2d 724 (1974)
Example: Standard of Care
Rule
• There can be no inference of negligence due
to a bad result which might have occurred
despite the use of reasonable care.
FOR MORE INFO...
Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Ragan v.
Steen, supra.
Which states permit the proof of a breach of duty
without the use of expert testimony?
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1.
2.
3.
4.
5.
California
Texas
Minnesota
Florida
It is not permitted in any state
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Answer: (5) No state permits this.
The rule in Ragan v. Steen and McKeesport
Hospital, 229 Pa. Super. 515, 331 A.2d 724
(1974) is still good law.
Proximate Cause
• Last element in Plaintiff’s case. It’s
different from cause-in-fact.
• Was the injury a forseeable result of the
act, or omission?
• Eliminates the Butterfly Catastrophe as a
basis of liability.
• Almost always a jury question.
Proximate Cause
• Butterfly catastrophe? Remember that given the nonlinearities in weather processes, a butterfly flapping its wings in the Amazon could theoretically produce a tornado in Kansas. • We need some sort of rule to limit liability
to injury from more “immediate” causes,
and that rule is “forseeability.”
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Which case element provides the LEGAL
connection between an act and its resulting injury?
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1.
2.
3.
4.
5.
Causation-in-fact
Duty
Breach of duty
Proximate cause
Damages
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ANSWER: (5) Proximate cause
Proximate cause, or “forseeability”, is the
legal connection between an act and the
resulting injury. It’s the glue that holds the
case together.
Palsgraf v. Long Island RR Co. (1928) 162
N.E.99
Never forget the guy with a box of fireworks.
Finally
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Hypothetical Case
• Fred is a medical physicist employed by
the Hospital. The Radiation Oncologist
who is not a hospital employee asks
Fred to do a procedure involving the
Radiation Oncologist’s patient which is
within the scope of Fred’s employment,
but Fred makes a mistake and the
patient is injured.
Hypothetical Case
• The patient sues naming Fred, the
Radiation Oncologist and the Hospital
as defendants. Which outcome below
is most likely the correct one?
Hypothetical Case – Outcome 1
a. Fred tenders his defense to the
hospital leaving the Hospital and the
Radiation Oncologist to pay as the
judgment defendants for the patient’s
injury.
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Hypothetical Case – Outcome 2
b. The Hospital and the Radiation Oncologist cross‐claim against Fred leaving Fred to pay as the sole judgment defendant for his mistake.
Disclaimer
Any opinions
expressed are those
solely of the author,
and not of any
affiliated institution
or organization
Hand Out
 Topics for further consideration
 Legal Research Resources
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Jeff Masten
Advances In Medical Physics
• Don’t expect the rules applicable to
professional negligence to change anytime
soon.
• But there are some factors in medical
physics that may impact the issue of
liability in the future.
Advances In Medical Physics
• Medical physicists are shielded from the
principal attack in a medical case by the
doctrine of respondeat superior, or masterservant relationship.
• This means the physician is ultimately
responsible, not the nurses and other
medical professionals that assist the
physician ……
Advances In Medical Physics
• As long as they are acting WITHIN THE
SCOPE OF THEIR EMPLOYMENT!
• But consider the impact of the push for
professionalism and the exercise of
independent judgment by physicists.
• At some point a trial lawyer, and possibly are
court may point at independent judgment and
assess an independent liability?
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Advances In Radiation Therapy
• Here are a few other items that have
changed in the past few years
– Form of business entity
– Unbundling services and charges
– Board Certification and professionalism
– Hardware and software
– Willingness to litigate
Changes In Business Entity Form
• Employer/employees to spin-offs,
consulting groups and
– C Corp., Sub S, partnerships and sole p.
– LLCs, LLPs, PMGs, etc.
• New parties to name as Defendants
– Additional insurance policies to stack
– Tactical advantage of cross-claims and
defendant disputes
Unbundling Services and Charges
• Along with the obvious advantages of
separate billing comes the dubious honor
of being a potential named Defendant.
• Regardless of whether the claim survives,
legal services arena’t free.
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Jeff Masten
Board Certification and
Professionalism
• Industry, or association, standards are
simply minimum requirements.
– Compliance doesn’t mean a jury will
necessarily find in your favor
• Along with individual recognition could
come individual responsibility, i.e.,
lawsuits.
Hardware/Software Considerations:
• Remember, the standard is “reasonable
reliance” and due care.
• Should you acquire Version 1.0 of
anything for a mission critical app?
• How long do you wait before an upgrade?
• Did you read the warranty exclusions?
Hardware/Software Considerations:
• In-house systems and work-arounds
– Distribution outside the organization can
invoke product liability claims
– Can it be defended?
– Percussive maintenance is not a joke for a
jury
• Therac-25 operating history
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Hardware/Software
• Ownership and intellectual property issues
may be determinative in third party actions.
– Enforceability of warranty exclusions
– License -v- title
– Subcontract Development/Vendor/Distributor
status and statutes of limitation
FOR MORE INFO...
Leveson and Turner, “An investigation of the Therac-25 Accidents”,
IEEE Computer Magazine 18 - 41 (1993)
Hardware/Software
• Consider the “Disclaimer” on the next slide.
– Do you think the Disclaimer would protect the
individual who wrote the software?
– Do you think the Disclaimer would protect you, or
your institution if you use the software and there is
an injury?
Example: Disclaimers
____________________________________________________
CLOSE CONTACT DOSE SPREADSHEET TEMPLATES
____________________________________________________
Version 2, February, 1998
____________________________________________________
DISCLAIMER NOTICE
Whilst the utmost care has been taken to eliminate "bugs" from
this software, the authors cannot guarantee that it is "bug-free".
Consequently, they accept no responsibility for loss of data or
any other difficulties which may arise from the use of these
templates. Also, the authors accept no responsibility for the
interpretation of the results presented and any clinical actions
taken on the basis of these results.
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Protecting Yourself
• “Reasonable reliance” are the magic words.
How can this be proved?
– What independent investigation was made by you
before acquisition?
– Any independent standards group evaluation?
– In-house verification and cross-checks?
– Literature search?
– Incident reporting and review?
FOR MORE INFO...
Leveson and Turner, “An investigation of the Therac-25 Accidents”,
IEEE Computer Magazine 18 - 41 (1993)
Protecting Yourself
• And Most of All
Documentation
Further Reading and Research
TEXT
• Shalek and Gooden, Medical Physicists and Malpractice, Medical
Physics Publishing 1996
WEBSITES
• FindLaw www.findlaw.com
• lexisOne www.lexisone.com
• Legal Information Institute www.law.cornell.edu
• American Bar Association www.abanet.org
• Federal Judiciary Homepage www.uscourts.gov
• Library of Congress http://thomas.loc.gov
• Your state bar association example: www.sdbar.org
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Jeff Masten
Further Reading and Research
• For the interested physicist, Shalek and
Gooden’s book offers an excellent
introductory survey of the legal principles we
have discussed.
Further Reading and Research
• Bibliographies Resources of the Law Firms Working Group
– firms.law.indiana.edu/research/index.shtml
• Emory Law School Library Home Page
– www.law.emory.edu/law‐library/library‐home‐
page.html
More Sites to Google
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State of South Dakota Official Home Page
The 'Lectric Law Library's Entrance, Welcome & Tour ‐ legal resources and definitions
The American Lawyer
The Federal Judiciary
The Securities Law Home Page
United States Department of Justice
VersusLaw Research Database
Villanova University School of Law ‐ Library
Get the Law | LII / Legal Information Institute
THOMAS (Library of Congress)
Free Legal Research Sites ‐ George Mason Law
Major Legal Research Sites
Justia :: Law & Legal Information for Lawyers, Students, Business and the Public
All‐Purpose Sites ‐ Free Legal Research Sites ‐ LibGuides at University of San Francisco School of Law
Welcome, lexisONE Users to your new LexisNexis Community! ‐ Portal
Legal Research Links
NYU Law ‐ Research: Legal Websites
Westlaw Sign‐On
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Jeff Masten
Keep in Mind
– Every State Bar Association maintains a site that is publicly available
– Every law school maintains at least part of its library for public access
– Every state Supreme Court maintains at least part of its library for public access
– Every state, of course, maintains its laws, rules and legislation for public access
Disclaimer
Any opinions
expressed are those
solely of the author,
and not of any
affiliated institution
or organization
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Further Reading and Research
•  Shalek and Gooden, Medical Physicists and Malpractice,
Medical Physics Publishing 1996 [An excellent introduction to
personal injury law and how it relates to accidents involving medical
physics]
•  For an overview (very brief) of the “how to” of legal research see
www.law.cornell.edu/wex/legal_research
•
•
•
•
•
•
FindLaw www.findlaw.com
lexisOne www.lexisone.com
Legal Information Institute www.law.cornell.edu
American Bar Association www.abanet.org
Federal Judiciary Homepage www.uscourts.gov
Library of Congress http://thomas.loc.gov/home/thomas.php
Reference Sites Con.nued •
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•
•
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•
•
•
•
•
•
www. Nolo.com/legal-research
www.duke.edu/lib/researchguides/intresearch
www.hg.org/index.html
www.justia.com
www.plol.org/Pages/search.aspx
www.washlaw.edu/
https://gsulaw.edu/metaindex/
Libguides.law.ucla.edu/onlinelegalresearch
www.fastcase.com
www.versuslaw.com
www.abajournal.com/..../
tips_on_doing_legal_research_online_for_free
•  www.loc.gov>Law Library>Research & Reports
More Help on How To Do It •  Levitt and Rosch, The CyberSleuth’s Guide to the Internet:
Conducting Effective Investigative & Legal Research on the
Web (9th Ed., KF242.A1 L485 2008)
•  A free site that relates specifically to the law applicable in your
jurisdiction is your State Bar Association. The extent and quality can
vary, but this frequently is a good starting point.
•  Another useful resource is your state’s law school library, or the
nearest law school library to you. They frequently offer both
assistance in forming your search terms, and possibly free
searches. There is absolutely no harm in asking.
•  Free and Low Cost Legal Research Guide
www.law.georgetown.edu/library/research/guides/freelowcost.cfm